L.M.R. v. Argentina

• CCPR

International Covenant on Civil and Political Rights: Articles 2, 3, 7, 17 and 18

General Comment No. 20: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment (art. 7)

The author of the communication is V.D.A, an Argentinian citizen, who submitted the communication on behalf of her daughter, L.M.R., born in Argentina on 4 May 1987. L.M.R.  has a permanent mental impairment. She has been diagnosed as having a mental age of between 8 and 10 years.

In June 2006 the author took her daughter to Guernica Hospital, in the Buenos Aires province where she found that her daughter was pregnant and the author requested a termination. The hospital staff refused to perform the procedure and referred the patient to San Martín Hospital in La Plata. They also informed her that she needed to file a complaint with the police. On June 2006 a complaint was filed.

On July 2006 she was admitted in the San Martín Hospital with a pregnancy of approximately fourteen and a half weeks. Since this was a case of non-punishable abortion pursuant to Article 86, paragraph 2 of the Criminal Code, hospital staff began the pre-surgical examinations necessary for the procedure. The aforementioned provision gives female rape victims with a mental disability the right to terminate a pregnancy but does not set deadlines and does not specify the type of medical procedure to be used. In addition, it establishes no requirement for judicial authorization of any form. The only requirements were that: the disability should be diagnosed, that the victim’s legal representative should give consent and that the termination should be performed by a licensed physician.

The hospital was issued with an injunction on all procedures and judicial proceedings were initiated to prevent the abortion. The juvenile court judge ruled that a termination should be prohibited because she did not find it acceptable to repair a wrongful  assault (sexual abuse) “with another wrongful assault against a new innocent victim, i.e. the unborn child”. The decision was confirmed on appeal by the Civil Court, which instructed the juvenile court judge to perform regular checks on L.M.R., accompanied by her mother, regarding the progress of her pregnancy.

On 31 July 2006, the Supreme Court of Justice of Buenos Aires province, overturned the contested decision and ruled that the termination could proceed. Consequently, the Court informed San Martín Hospital that the surgical procedure was legal and did not require judicial authorization. This ruling was issued almost a month and a half after the rape was reported and the termination of pregnancy was requested.

Despite the ruling, San Martín Hospital and the family came under enormous pressure from various sources opposed to the termination and the hospital refused to perform the procedure on the grounds that the pregnancy was too advanced (between 20 and 22 weeks). The family managed to arrange an illegal (clandestine) termination on 26 August 2006. Press reports indicate that both the Rector of the Catholic University and the spokesperson of the Corporation of Catholic Lawyers contributed to the pressure exerted on the family and the doctors.

The author claimed that the State party had violated Articles 2 paragraph 1 (non-discrimination) 2 paragraph 3 (right to remedies), 3 (equality), 6 (right to life), 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), 17 (protection against arbitrary or unlawful interference with privacy, family and home) and 18 (freedom of thought, conscience and religion) of the Covenant.

The author maintained that the State party was responsible by omission for the violation of Article 2 of the Covenant because it lacked the mechanisms that would have enabled L.M.R. to obtain a termination of pregnancy. She suffered discrimination in accessing reproductive health services and her reproductive autonomy, right to privacy and confidentiality and right to access a safe termination through the public health system were violated.

The author alleged that the State violated Article 3 of the Convention with the impossibility of obtaining a termination of pregnancy. The State’s failure to exercise due diligence in safeguarding a legal right to a procedure required solely by women, coupled with the arbitrary action of the medical staff, resulted in discriminatory conduct that violated L.M.R.’s rights.

The author also maintained that the facts described constituted a violation of L.M.R.’s right to life. The State failed to adopt the measures and act with the due diligence necessary to ensure that L.M.R. could obtain a safe abortion and prevent the need for an unlawful, unsafe abortion.

The author maintained that the State also violated Article 7 of the Covenant by forcing her daughter to continue with her pregnancy. The refusal to terminate the pregnancy inflicted many days of mental and physical anguish and suffering on L.M.R. and her family.

The author also alleged the violation of Article 17 by the State interfering in a decision concerning L.M.R.’s legally protected reproductive rights but also interfering arbitrarily in her private life.

Finally, the author claimed a violation of Article 18 of the Covenant when catholic groups made direct, public and continual threats of various kinds and subjected the family to pressure and coercion without the authorities stepping in to protect L.M.R.’s rights.

The author requested the Committee: (a) establish the State’s international responsibility; (b) order the State to give full reparation to L.M.R. and her family (c) order the State to implement hospital protocols that would facilitate access to legal, safe abortion and the mechanisms necessary to give effect to this right; (d) review the domestic legal framework for abortion.

On 9 January 2008, the State party via note verbal, indicated that the communication was inadmissible on the grounds of failure to exhaust domestic remedies. The communication seeks to submit a simple application for compensation to international jurisdiction, even though the judicial remedies sought at the domestic level to ensure access to abortion were resolved in L.M.R.’s favour. Notwithstanding the foregoing, the State party observed that the author’s claims for injury and damages should first be submitted to domestic jurisdiction. The Code of Civil and Commercial Procedure in effect in Buenos Aires province provides a specific, pertinent and effective procedure for claiming compensation for alleged physical and mental suffering.

Should it be found that the author is entitled to reparation for damage and injury, mechanisms for lodging such claims were available under domestic legislation. With regard to her request that the State party take steps to prevent repetition and implement hospital protocols to facilitate access to safe, legal abortion and mechanisms for exercising this right, on 29 January 2007, through Decree No. 304/2007, the Ministry of Health of Buenos Aires province approved a Provincial Health Programme for the Prevention of Domestic and Sexual Violence and for Victim Support, which contains a protocol for non-punishable abortion.

On 14 June 2008, the author reiterated her request that the Committee should establish the State’s international responsibility for the violation of L.M.R.’s rights, on the grounds that the State did not fulfil its obligation to safeguard and respect her right to a legal remedy, her right to life, her right to equal treatment, her right not to be subjected to cruel, inhuman and degrading treatment, her right to privacy and her right to freedom of thought and conscience. Establishing this responsibility was the main aim of the communication, and was fundamental to the satisfaction of the author’s other requests. The application for full reparation and all other requests were a necessary consequence of the violation of L.M.R.’s human rights.

All domestic remedies were exhausted with regard to the main contention of the communication, which is that the refusal of a legal abortion was a violation of her rights. L.M.R. won a ruling in her favour before the highest provincial court, which was the court of last resort. However, the ruling was not enforced because the staff in the State hospital who should have executed it refused to do so. L.M.R. did not have the option of appealing against a favourable ruling that the State refused to enforce, in continuing violation of her rights.

With regard to the State party’s observations on the merits, the author noted that the State party prided itself on the speed of the judicial process. It fails to mention, however, that the process was unnecessary and the fact that it took place at all constitutes a violation of L.M.R.’s rights.

The promulgation of the Ministerial Decree containing a protocol for non-punishable abortion in Buenos Aires province was subsequent to the case. Furthermore, although the protocol is a positive development, it remains a partial solution only.

On 21 August 2008 the State party observed that it could be concluded from the Supreme Court ruling that the lower instance courts of Buenos Aires province had interfered unlawfully since judicial authorization is not required for a termination of pregnancy under Article 86.2 of the Criminal Code. The consequences of this interference made an abortion impossible due to the advanced stage of the pregnancy. This would appear to indicate that the claimant is right in invoking a possible violation of Article 2 of the Covenant. However, the hospital decided not to perform the termination because the advanced stage of the pregnancy meant that the procedure was no longer considered a termination from the medical point of view but was effectively an induced birth.

The State party also observed that the State’s unlawful interference, through the judiciary, in an issue that should have been resolved between the patient and her physician may be considered a violation of her right to privacy. Furthermore, forcing her to endure a pregnancy resulting from rape and undergo an illegal (clandestine) abortion may have been a contributing factor to the mental injury that the victim suffered, although it did not constitute torture within the meaning of Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The victim’s freedom of thought, conscience and religion was not violated by the State, because the activities of specific groups were unconnected to the actions of its officials. The State party indicated that it would be ready to consider the possibility of initiating an amicable settlement procedure in which the applications made by the author would be examined.

On 6 February 2010 the author rejected the contention that the hospital had decided not to perform the termination of pregnancy because the advanced stage of the pregnancy meant that the procedure was no longer considered a termination from the medical point of view but was effectively an induced birth.

The author did not accept the State party’s contention that this was not a case of torture within the meaning of Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The author reiterated that the State party did not at any time take steps either to protect L.M.R. and her family or to prevent conservative groups within the Catholic Church from imposing their religious convictions on the victim, her family and the hospital staff, denying them the freedom to make their own decisions.

With regard to the possibility of an amicable settlement, the author informed the Committee that the parties met on three occasions between August and November 2008 to discuss reparation for the victim and her family and measures to prevent repetition. The parties failed to make progress on any aspect of the application for compensation. The only agreement reached was for a study grant of 5,000 pesos to be paid by the Ministry of Education of Buenos Aires at the end of 2008. She rejected the possibility of an amicable solution

The Committee declared the communication admissible insofar as it raised issues under Articles 2, 3, 7 and 17 of the Covenant.

The Committee observed that the State agreed with the author that the injunction issued by the lower courts of Buenos Aires province in the case of L.M.R. constituted unlawful interference under Article 86.2 of the Criminal Code. It also agreed with the author that several Articles of the Covenant had been violated. Consequently, the Committee considered that there were no obstacles to consideration of the merits of the communication under Article 5, paragraph 2 (b) of the Optional Protocol.

The Committee recalled that, according to its established case law, Article 2 of the Covenant constitutes a general undertaking on the part of the State and cannot be invoked in isolation by individuals under the Optional Protocol. Consequently, the complaint under Article 2 will be considered together with the claims made by the author under other Articles of the Covenant.

The Committee considered that the allegation made under Article 3 to be closely related to those made under other Articles of the Covenant, and that they should therefore be considered together.

The Committee noted that there is nothing in the case file to indicate that L.M.R.’s life was exposed to particular danger because of the nature of her pregnancy or the circumstances in which the termination was performed. Consequently, the Committee considered that this complaint is not substantiated and is therefore inadmissible under Article 2 of the Optional Protocol.

The Committee considered that the author has not adequately substantiated her complaint regarding the violation of Article 18 as a result of State inaction in the face of pressure and threats from Catholic groups and the hospital doctors’ conscientious objection, for purposes of admissibility and that the complaint must therefore be declared inadmissible under Article 2 of the Optional Protocol.

Concerning the allegations relating to Articles 7 and 17 of the Covenant, the Committee considered that they were adequately substantiated for purposes of admissibility.

Findings of Committee: The Committee found that the facts disclosed violations of Articles violation of Article 7(prohibition of torture or cruel, inhuman or degrading treatment or punishment; Article 17 (protection against arbitrary or unlawful interference with privacy, family and home); and Article 2, paragraph 3(right to remedies) in relation to Articles 3 (equality); 7 and 17 of the Covenant.

The Committee took note of the author’s allegation that forcing her daughter to continue her pregnancy, constituted cruel and inhuman treatment. The State party asserted that, while forcing her to endure a pregnancy resulting from rape and undergo an illegal (clandestine) abortion could have been a contributing factor to the mental injury that the victim suffered, it did not constitute torture. The Committee considers that the State party’s omission, caused L.M.R. physical and mental suffering constituting a violation of Article 7 of the Covenant that was made especially serious by the victim’s status as a young girl with a disability. In this connection the Committee recalled its GC No. 20 in which it states that the right protected in Article 7 of the Covenant relates not only to acts that cause physical pain but also to acts that cause mental suffering.

The Committee considered that the facts reveal a violation of Article 17, paragraph 1 of the Covenant.

The Committee observed that the judicial remedies sought at the domestic level to guarantee access to a termination of pregnancy were resolved favourably for L.M.R. by the Supreme Court ruling. However, to achieve this result, the author had to appear before three separate courts, during which period the pregnancy was prolonged by several weeks, with attendant consequences for L.M.R.’s health that ultimately led the author to resort to illegal (clandestine) abortion. For these reasons, the Committee considered that the author did not have access to an effective remedy and the facts described constitute a violation of Article 2, paragraph 3 in relation to Articles 3, 7 and 17 of the Covenant.

In accordance with Article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide L.M.R. with avenues of redress that include adequate compensation. The State party is also under an obligation to take steps to prevent similar violations in the future